5 Important Steps for a Successful Right-of-Way Acquisition

You see stories like this all the time about how tough it is to understand right-of-way processes and their varying agreements.
A recent lawsuit in California says that parts of a 70-mile pedestrian trail that run along an expansive set of train tracks were improperly built on private land using entitlements from a right-of-way agreement dating to the late 1800s.
The catch, the plaintiffs say, is that the railroad companies that acquired the rights of way obtained easements for the building of only railroads, not trails.
Now, the area’s rail transit provider could be on the hook for an alleged “illegal taking of private land,” local news outlets report.
This lawsuit underscores the complexities of right-of-way agreements, which allow an individual or entity—a municipality, utility or government agency, for instance—to pass through a property owned by someone else for several reasons.
In the case above, not only does the legal filing involve a century-plus-old right-of-way acquisition, but it includes countless homeowners, changing state and local ordinances, and a complex 1968 federal law.
Right-of-ways frequently make headlines for roadway construction work, from your essential road widening to ease surging traffic to large-scale projects like expanding major interstate highways.
But right-of-way agreements are equally critical for utilities such as gas, water, sewer, power and, in our case, telecommunication providers to expand and provide essential services to underserved areas and populations.
Right-of-way permitting in civil and utility engineering incorporates many particulars, a lot of details and, oh yeah, a tremendous amount of time—months, sometimes years.
After all, each state has its specific way of granting right-of-way approval, simultaneously adhering to federal requirements.
What intricacies does your right-of-way project entail?
What steps can you take now to secure a successful, legally binding right-of-way acquisition?
Every case and situation is different, but let’s review some basic procedures to help you start.
Know the Difference Between Right-of-Way and Easement
A right-of-way is a specific type of easement, which gives someone or something—like an underground or aboveground utility—the right to use property owned by another.
Right-of-way acquisitions allow the entity to enter your property and use it as a passage. The entity can use the land to move something from Point A to Point B. with no possessory interest in a portion of real property used.
In other words, you can use the land to move a product, a service or, in the case of roadways, motorists. The property’s ownership stays where it started: with the original landowner.
Research Ton of Documents to Determine True Standing
Before you jumpstart your project’s right-of-way pursuit, you must first do what the landowners in the California case study above say the rail company did not do very well.
That is, review the nitty-gritty of any existing right-of-way agreements in the land required.
A thorough review includes thumbing through existing plans, property surveys, current ground conditions, and historical documents—even those over 100 years old, as we just learned.
Ultimately, your detailed right-of-way acquisition plan will require the following must-haves to proceed:
  • Survey
  • Project scope
  • Preliminary design
  • Final design
  • Cost estimates
  • A recording of all plans
Meet Face-to-Face With Those Most Impacted
The next step is perhaps the most challenging. It includes meeting with the landowner(s) whose property will be affected.
But you will be meeting with more than just the landowners.
Your right-of-way telecommunications project requires that you answer to the public as well. That means attending public meetings and private meetings with government officials to explain why your right-of-way request is the only way your project, critical to the public, can move forward.
Be welcoming. Answer questions. Ask for more. Remember, the initial rollout of your project will have a long-lasting influence on the public’s perception. The chances of the impacted landowners agreeing to your offer will hinge on how you present yourself in this crucial phase.
Expert advice: Record everything everyone says, official, public meeting attendees, and private landowners included. It’ll protect you, not just legally, but in terms of building trust, ensuring there’s no confusion later down the line.
Another tip: Always make yourself available to answer questions and address concerns. Both will build a robust process and trusting rapport.
Apprise the Land—and Start Negotiating
The next step is to appraise the land, then negotiate with the landowners.
After the appraisal, review and submit your offer. If the landowner agrees, congratulations. If they don’t, negotiate. Do not fear going back and forth—it’s part of the process.
So, too, is this hard truth: Not all negotiations go well or smoothly.
After negotiation efforts are exhausted, there are last-resort alternatives. One is acquiring the land access you need via a fee-simple acquisition, which differs from traditional right-of-way tactics in that it results in the transfer of land ownership to complete your project.
Another maneuver is eminent domain, which allows the state or federal government to use its legal powers to force the landowner’s hand for proper compensation.
An expert right-of-way team will avoid the last two options and help close the deal at the negotiation table, not in court.
Sign off on the Appropriate Right-of-Way Agreement—and Start Hammering
Well done: You and the property owner have reached an agreement on the proposal compensation.
Next step: Prepare the deed or easement document, and with a notary present, ink the deal. Save all records. Make copies.
Then, yes, finally, call up your construction team. At long last, project construction can commence.
How to Get Over, Under, Through, And Across Your Project Challenges
Right-of-way acquisition is often cited as a make-or-break factor in completing a project, influencing how well it stayed on budget and whether work was completed on schedule.
Alternating federal, state, and local regulations, outside influencers, and the sensitivity of dealing with land owned by someone else is an evolving legal challenge that, should you take the wrong turn, could set your project back months or years.
In some instances, the wrong step and planning could thwart the future of your project altogether—or create the oh-no headlines like the one you saw above in California.
You’re not in the business of making unwelcome news. Neither are we. Are you looking to create headlines about how your right-of-way project will connect people to others and provide service to the underserved?
Reach out. Let’s get the conversation started.
Posted: 8/4/2021 1:34:57 PM